Legislation to Block ‘Blacklisting’ Rule Will Protect Contractors’ Rights

Contact: Jeff Leieritz (202) 905-2104             
[email protected]
                                                                For Immediate Release

– Associated Builders and Contractors (ABC) today commended the U.S. House of Representatives for passing legislation (H. J. Res. 37) that will block implementation of the Obama administration’s Fair Pay and Safe Workplaces Executive Order 13673, commonly referred to as “blacklisting,” through the Congressional Review Act (CRA).

Implementation of the blacklisting rule’s reporting and disclosure requirements was temporarily blocked on Oct. 24, 2016, when a U.S. District Court judge for the Eastern District of Texas ruled in favor of ABC’s lawsuit and granted a preliminary injunction against the reporting provisions of the rule, which were scheduled to take effect Oct. 25, 2016. Under the CRA, Congress may pass a resolution of disapproval to prohibit a federal agency from implementing a rule without congressional authorization with a majority vote in both houses of Congress. If President Trump signs the CRA resolution into law, it will block the blacklisting rule from taking effect and prevent future administrations from promulgating a similar rule—essentially permanently eliminating the rule.

“Associated Builders and Contractors has vigorously fought the Obama administration’s illegal blacklisting rule, which would have treated frivolous accusations of wrongdoing as grounds to prohibit qualified contractors from performing federal work," said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. "ABC commends the leadership of Reps. Steve Chabot (R-Ohio), Jason Chaffetz (R-Utah) and Virginia Foxx (R-N.C.) for taking action to protect contractors and taxpayers from the blacklisting rule’s burdensome and duplicative reporting requirements that would have discouraged qualified firms, particularly small businesses, from pursuing federal contracts, while also increasing costs to taxpayers.

“As the district court ruled in its preliminary injunction, treating non-adjudicated claims the same as actual wrongdoing denies federal contractors their due process rights,” said Brubeck. “ABC supports policies that increase fairness and competition in government contracting and looks forward to working with the Trump administration and Congress to pursue commonsense policies that hold bad actors accountable while attracting the best companies and trained workforce to rebuild America.”

Nationally, ABC members performed more than 60 percent of all federal government construction contracts exceeding $25 million from FY2009 to FY2015. 

H. J. Res. 37 was introduced in the House by Education and the Workforce Committee Chairwoman Foxx, Small Business Committee Chairman Chabot and Oversight and Government Reform Committee Chairman Chaffetz. ABC sent a letter to the House urging lawmakers to support H.J. Res 37 and notifying that it will consider the bill a key vote on its 115th Congressional Scorecard ahead of the vote. 

According to a September 2016 survey of ABC members:
  • 51 percent said the rule’s onerous requirements, including reporting alleged violations that firms are still contesting, will force them to abandon the pursuit of federal contracts;
  • 91 percent said the rule will impose a significant or extreme burden for their firm through new requirements to compile information needed to comply with final rule;
  • 93 percent said the final rule will make the contracting process less efficient; and
  • 98 percent said the final rule will make the contracting process more expensive.
ABC has consistently opposed the blacklisting proposal since the White House issued the Fair Pay and Workplaces Executive Order 13673 in July 2014, and has:
  • Supported legislative efforts to protect contractors from the policy;
  • Submitted comments in August 2015 urging the withdrawal of the Federal Acquisition Regulatory Council and U.S. Department of Labor (DOL) proposals along with more than 300 ABC member companies;
  • Joined 19 other business trade groups in sending a Nov. 6, 2014, letter to DOL Secretary Thomas Perez and Director of the White House Domestic Policy Council Cecilia Muñoz requesting the president withdraw the executive order; and
  • Spoken out against the executive order in an Oct. 13, 2014, White House listening session hosted by Secretary Perez, Director Muñoz and Beth Cobert, deputy director at the U.S. Office of Management and Budget.
For more information, visit abc.org/blacklisting.